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[2019] ZALCJHB 77
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National Union of Mineworkers and Others v Thompson (J913/19) [2019] ZALCJHB 77 (12 April 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: J913/19
In
the matter between:
NATIONAL
UNION OF MINEWORKERS
First
Applicant
MSOMI,
NKOSINGIPHILE & 21 OTHERS
Second
to Further
Applicants
and
JOHN
THOMPSON (a division of
ACTOM) Respondent
Heard:
09 April 2019
Delivered:
12 April 2019
JUDGMENT
LALLIE.
J
[1]
The applicant launched this urgent application for an order mainly in
the following
terms:
“
1.
CONDONING non-compliance with and DISPENSING with the provisions of
the Rules of this
Honourable Court relating to times and manner of
service referred to therein and dealing with the matter as one of
urgency in terms
of Rule 8 of the Labour Court Rules.
2.
DECLARING that short time work arrangement directed by the Respondent
to Second
and Further Applicants is a breach of their contract of
employment.
3.
DECLARING that short time work arrangement is not consented therefore
compelling
Second and Further Applicants to work systemically reduced
time is unlawful unilateral change to terms and conditions of
employment.
4.
DECLARING that 2 and 3 above is contrary to ‘fair labour
practice’,
is serious harassment and abuse of authority thus a
direct violation of Second to Further Applicants of their
constitutional rights.
5.
DECLARING that changing from section 189A of the Labour Relations Act
facilitation
process to short time work arrangement is unfair and
unlawful designed to induce unfair resignation instead of
retrenchments.
6.
DECLARING that the warning issued by Commissioner, Mr Simon Makhubela
on 7 February
2019 to the Respondent not to do anything untoward in
relation to the facilitation process is binding on the Respondent.
7.
DECLARING that the Ruling issued by Commissioner Makhubela as
attached is final
and legally binding on the Respondent until set
aside by this Court.
8.
DECLARING that the Respondent and the Applicants are engaged on the
LRA regulated
retrenchment process facilitation which must be
completed before another form of restructuring process commences
which involves
same persons.
9.
DECLARING that the National Union of Mineworkers is a non-party to
the Metal
and Engineering Industries Bargaining Council (MEIBC)
collective agreement so are it members.
10.
DECLARING that the MEIBC collective agreement has not been extended
by the Minister of the
Department of Labour to non-parties therefore
is not applicable to the Applicants.
11.
DECLARING, in the event Respondent relies on MEIBC, clause 7 of the
agreement dealing with
short time, which without consent of the
employees or consensus by the parties’ concerned is enforcement
is unconstitutional.
12.
ORDERING that a Rule Nisi issued calling upon the Respondent herein
to appear and show cause
on a date and time to be determined by this
Honourable Court why a final Order should not be granted, in the
following terms:
12.1
Directing that the respondent returns to retrenchment process as
facilitated by the CCMA to its completion.
12.2
Directing Respondent in terms of paragraph 11.1 above to engage on
meaningful consultation, fair and
objective selective criteria.
12.3
Directing that Respondent is from the 8 April 2019 until the matter
is heard interdicted and restrained
at least from-
12.3.1 Barring
Second to Further Applicants from reporting for normal duties in
terms of their respective contracts of employment
and any other law;
12.3.2 Directing
respondent to pay applicants their normal wages and salaries
respectively;
12.3.3 Interdicting
the Respondent from unilaterally selecting second to Further
Applicant as casualties of retrenchment and
subsequent targets for
perpetual harassment, call to resign and forced short time work.
13.
ORDERING that respondent comply with natural rules of justice and
fairness and in accordance
with and applicable provisions of the law,
common law and the Constitution.”
[2]
The factual background of this matter is that on 26 November 2018 the
respondent issued
its employees with a notice in terms of section
189(3) of the Labour Relations Act
[1]
(the LRA) informing them of its contemplation to dismiss part of its
workforce for its operational requirements (retrenchment).
The notice
further informed the employees, including the second to further
applicants who are members of the applicant, that the
retrenchment
process was in terms of section 189A of the LRA. It also expressed
the respondent’s intention to request facilitation
in terms of
section 189A (3) of the LRA and to have the process possibly
finalised by 24 January 2019. The first applicant (the
NUM) requested
facilitation from the Commission for Conciliation Mediation and
Arbitration (the CCMA). After the parties dealt
with their
differences of opinion, facilitation commenced. It had its fair share
of disputes which the facilitating commissioner
resolved by issuing
rulings.
[3]
On 25 March 2019, before the facilitation process was finalized, the
respondent issued
a notice in terms of clause 7 of the Metal and
Engineering Industries Bargaining Council Consolidated Main Agreement
(the MEIBC)
expressing its intention to implement short-time. The
roster for the manner in which the respondent intended operating
during the
short-time was attached and the unions and employees were
informed that a consultation meeting would be held at 09h00 on 29
March
2019. The NUM responded by objecting to the implementation of
short-time on the basis that it was a stratagem to frustrate the
section 189A facilitation. It insisted that facilitation be proceeded
with. The respondent maintained that nothing precluded it
from
effecting short-time concurrently with the retrenchment process. It
relied on the MEIBC. The NUM did not attend the consultation
meetings
on short-time scheduled for 25 and 27 March, 1, 2 and 3 April 2019.
[4]
In a letter dated 1 April 2019 the applicant lodged a formal dispute
with the respondent
opposing short-time. It relied on section 64 of
the LRA which governs unilateral changes to terms and conditions of
employment,
the Constitution of the Republic of South Africa
[2]
(the Constitution), section 158 of the LRA which enables the Labour
Court to grant urgent interim relief, the Basic Conditions
of
Employment Act
[3]
(the BCEA) and
common law. It further advised the respondent that it would launch an
urgent application in this Court on being
advised of the commencement
date of the contemplated short-time. On 3 April 2019 the respondent
informed the applicant that only
those employees rostered to work
would be permitted on site. The NUM reacted by filing the application
at hand on 5 April 2019.
The application is opposed by the
respondent.
[5]
The urgency of the application will be determined first as it is
challenged by the
respondent. The respondent submitted that this
application is not urgent. It considered the period it was allowed to
file its answering
affidavit unreasonably short on the grounds that
the first applicant had been aware since 25 March 2019, 11 days
before the application
was served on 5 April 2019, that it intended
implementing short-time arrangements with effect from 8 April 2019.
This submission
is not factually correct. The letter the respondent
sought to rely on was sent to the NUM on 25 March 2019. It conveys
the respondent’s
intention to implement short-time, however, it
does not disclose its commencement date. It is therefore the
applicant’s version
that is supported by the letter, the
respondent sought to rely on.
[6]
It is common cause that the NUM objected to the implementation of
short-time and when
it was apparent that the respondent was taking
procedural steps towards its implementation, the NUM, on 1 April 2019
declared a
dispute and informed the respondent of its intention to
approach this Court on an urgent basis on receipt of the short-time
commencement
date. It is in the letter of 3 April 2019 that the
respondent informed the NUM that only the employees who were rostered
to work
would be allowed on site. The respondent effectively informed
the NUM of the short-time commencement date on 3 April 2019 and the
application at hand was filed the following day. The NUM did not
delay in filing the application.
[7]
I have considered the respondent’s submission that the limited
time within which
it was required to file the answering affidavit
warrants that the application be struck off the roll. Other grounds
on which urgency
was attacked was that the applicants have
alternative remedies including seeking relief in terms of section 64
of the LRA which
they have not pursued because they find it
inconvenient. Each case is decided on its merits. While the period
the respondent was
given to file its answering affidavit is limited,
the applicants’ conduct is excusable.
[8]
The respondent submitted that it was its intention to have the
facilitation process
and therefore the retrenchment exercise
finalised by 24 January 2019. The parties are engaged in a
retrenchment exercise and facilitation
has commenced. Seeking relief
in terms of section 64 of the LRA will not constitute effective
alternative relief for the applicants
owing to the limited time the
parties have before the finalisation of the retrenchment exercise.
The material and relevant issues
raised by the applicants render this
application inherently urgent and refusal to deal with it urgently
will result in denying
them excess to justice. In the circumstances,
I find the application urgent.
[9]
During argument it was established that properly distilled, the
relief the applicants
approached this Court for was to have the
respondent interdicted from unlawfully implementing short-time
against the individual
applicants. The legal position in respect of
requiring employees to work overtime which is consistent with the
letter and spirit
of the LRA and the BCEA is expressed in the
following words in
CWIU
& Others v Algorax (Pty)
[4]
:
“
Where, for
example, an employer seeks to reduce costs in his business and
demands that his employees agree to work short-time, that
employer
has genuine operational requirements justifying the working of
short-time but, without the employees’ consent, he
is not
entitled to require them to work short-time. He can demand that they
work short time but they are not under any obligation
to comply with
is demand”
[8]
It is common cause that the respondent implemented short time in
terms of clause 7
of the MEIBC which is a collective agreement. The
agreement is valid as it was extended until 2020. It, however, is not
binding
on the applicants because the respondent conceded that the
NUM is not a signatory to the MEIBC and the MEIBC was not extended to
non-parties. Clause 7 of the MEIBC in terms of which the respondent
implemented short-time is binding only to parties to it as
by being
parties they consented to all the terms of the collective agreement
including clause 7. The respondent did not attempt
to seek the
individual applicants’ consent to work short-time. It took the
decision that they work it and sought to consult
them about the
manner in which it would be worked. It was labouring under the
incorrect view that the MEIBC is binding on the individual
applicants.
[9]
It was argued on behalf of the applicants that the respondent’s
conduct of demanding
that the individual applicants work short-time
without their consent has no legal basis. It is also in violation of
sections 1,
2, 3, 4 and 5 of the BCEA. The BCEA provides in
unequivocal terms that ordinary working hours may be varied in terms
of a collective
agreement. Employees’ consent is therefore a
requirement for implementing short time. The applicants established
that the
respondent’s conduct of demanding that they work short
time without their consent is unlawful. The respondent provided no
valid and lawful reason for its conduct.
[10]
In the premises, the following order is made:
Order:
1. The
non-compliance with the provisions of the Rules of this Honourable
Court is hereby condoned and the provisions
relating to times and
manner of service referred to therein are hereby dispensed with and
this matter is dealt with as one of urgency
in terms of Rule 8 of the
Labour Court Rules.
2. The
Respondent is interdicted and restrained from-
2.1. Demanding that
the Second to Further Applicants work short time without their
consent; and
2.2. Barring Second
to Further Applicants from reporting for their normal duties in terms
of their respective contracts of
employment.
3. The
Respondent is directed to pay the Second to Further Applicants their
normal wages and salaries lost as a result
of being prevented by the
Respondent from working their normal working hours.
4. No order
is made as to costs.
Z.
Lallie
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant:
Mr Bongi Zwane (Union
Official of NUM)
For
the Respondent:
Ms Penny Bosman
Instructed
by:
Hogan Lovells
[1]
66
of 1995 as amended.
[2]
108 of 1996.
[3]
75 of 1997.
[4]
[2003]
11 BLLR 1081
para